The Legal Implications of Health Advice, Part 2

What do you say to a student who is healing from whiplash and asks whether Shoulderstand or Headstand could possibly compromise her chiropractic sessions? What about a student who has asthma and asks about the potential benefits of these postures for his condition? One who has a heart condition and heard from his energy healer that “turning upsidedown could reverse the energy flow and spin the heart chakra backwards”? One who asks whether certain Chinese herbs are helpful for menopause? Or one who asks your advice as to whether acupuncture can help augment flexibility?

Yoga therapy may offer health benefits, but, in most states, only licensed health providers are legally authorized to give health advice, and then only within a limited scope of practice for the profession delineated by statute. When faced with requests for health advice, here are some general principles to keep in mind: It is appropriate to acknowledge the limits of yoga teacher training, to emphasize the importance of requesting advice from licensed health professionals (in an appropriate professional setting), to beware of making health recommendations yourself, especially involving dietary supplements, and to appropriately acknowledge your students’ health concerns (see The Legal Implications of Health Advice, Part 1).

But still, don’t Patanjali and some of the great, contemporary masters of yoga describe health benefits of specific poses? In the ancient world, wasn’t yoga considered a science as well as an art? And isn’t yoga therapy a set of practices, discovered through meditation and experience, attuned to healing specific diseases?

Indeed, that may be true, and there may be a gap between what yoga is and can be, and how it–like other health modalities–is regulated by law. Nonetheless, the danger in claiming health benefits is not only potential inaccuracy and lack of sufficient scientific evidence (see Can You Prove That Yoga Works?), but also potential liability. To protect themselves, teachers should learn the implications of several legal rules that govern claims in health care, including licensing laws, legal rules regarding professional discipline, laws relating to advertising, malpractice liability rules, fraud and consumer protection rules,and others.

Many of these hone in on the same principle: claims that are false or misleading may be legally actionable. Students who rely on unproven and misleading benefit claims may, if injured, be able to allege fraud or misrepresentation as one way to win a lawsuit. Federal and state regulatory agencies also can intervene if exaggerated claims endanger the public.

When tempted to tell your class, for example, that “backbends fight depression,” consider that contemporary medical science has not validated this claim and that, even if the statement is true, we do not know how this works. The wisdom of the ancient sutras may appeal to the higher mind of the contemporary yogi, but not to regulatory authorities. Linking a therapeutic practice (such as backbends) to a medical disease category (e.g., depression) can be a red flag for regulatory authorities who must ensure that advice regarding disease treatment is left to licensed medical doctors.

Put the statement that “backbends fight depression” on your yoga studio’s website and not only licensing authorities, but also the Federal Trade Commission (which regulates Internet advertising), might take an interest. In the past, different health care providers have gotten into legal trouble with ads containing exaggerated, hyperbolic, or even suggestive statements, such as, “relief is just a phone call away.”

To limit potential liability, follow the suggestion of Yoga Journal’s medical editor, Timothy McCall, M.D., in acknowledging your sources. For example, while leading class, you might say, “This comes from my teacher, this from Patanjali, this from my own experience, and this from a trial study done at the Mayo Clinic” (see Can You Prove That Yoga Works?). In addition to that basic rule of thumb, here are some other ways you can work to limit potential liability stemming from exaggerated claims:

1. Limit claims to those backed by current medical and scientific evidence. When evaluating what is “false and misleading,” regulators are likely to follow conventional medical evidence in assessing the truth of claims. Therefore, the yoga teacher who claims that a particular pose has a specific health benefit is on safer ground referring to current articles in peer-reviewed medical literature.

2. Be clear about potential contraindications. By balancing a discussion of potential benefits with a mention of known risks, yoga teachers give students the full disclosure necessary to make up their own minds about how far to venture into a poseand into the practice. Disclosing risks and benefits also accords with the legal principle of informed consent, which is applicable to licensed health care providers more broadly.

3. Stay modest about potential benefits. Not all statements about yoga therapy are legally problematic. In many cases, acknowledging sources, mentioning contraindications, and being clear about the medical evidence behind claims can help steer teachers away from undue liability concerns. Humility is key. Legal issues tend to arise when health care providers make claims that are false and misleading, that are excessively exaggerated, or that lead to over-reliance on non-medical therapy to the exclusion of necessary medical care. Staying modest about what is known and not known and steering away from benefit statements that could sound, in the ears of an injured student or regulatory authority, like a pitch, will help.

These suggested guidelines are not intended to overstate legal risks, but simply to identify potential problem areas and suggest some basic, risk management strategies. This focus potentially can both increase safety and enhance professionalism.

As mentioned earlier, the worst legal trouble around claims often is associated with perceptions of salesmanship in health care; for example, read into Missouri’s prohibition against “any self-laudatory statement” by a chiropractor, a legitimate concern about the use of strings of self-aggrandizing (and possibly meaningless) letters after one’s name. So to stay grounded in the area of health advice and health claims, be guided, among other ideals, by yogic ethical principles of ahimsa, the obligation of non-violence, and satya, the obligation of truth.. Those ideals, combined with common sense, will go a long way toward ensuring legally safe and responsible practice.

Michael H. Cohen, JD publishes the Complementary and Alternative Medicine Law Blog (www.camlawblog.com), an informational resource for health care professionals and the health care industry. He is also an Assistant Professor of Medicine at Harvard Medical School.

The materials in this website/e-newsletter have been prepared by Michael H. Cohen, JD and Yoga Journal for informational purposes only and are not legal opinion or advice. Online readers should not act upon this information without seeking professional legal counsel.